Permanent legislative changes regarding electronic meetings: the impact on councils and CAPs

The complicated South Australian legal landscape governing what types of meetings can and cannot be held electronically is about to change significantly.

In particular, when the Statutes Amendment (COVID-19 Permanent Measures) Act 2021 commences operation on 9 September 2021, a permanent provision will be inserted into the Acts Interpretation Act 1915 (AI Act) which will generally permit any meeting required under South Australian law to occur remotely, by audio-visual or audio-only means. Although the AI Act will then be repealed by the Legislation Interpretation Bill 2021 (if that Bill becomes law), an equivalent provision has been included in that Bill (and will almost certainly remain in the Bill in some form).

Thus, the current legal position—i.e. that meetings required under South Australian law may generally not be conducted remotely unless this is specifically permitted—will, from 9 September 2021, be reversed. From that date, it will be the case that meetings required under South Australia law may generally be conducted remotely, unless expressly or impliedly excluded by law.

There are specifics exclusion relevant for local government in the Acts Interpretation (Audiovisual Meetings) Regulations 2021 (AIAM Regulations). These regulations have the effect that council meetings will not be able to be held remotely. Thus, once the current COVID-19-related temporary legal measures have expired, councils will not be able to rely on the AI Act to continue to meet remotely.

However, it is important to note there is no such exclusion for Council Assessment Panels (CAPs) established under the Planning, Development and Infrastructure Act 2016 (PDI Act). Accordingly, unless the law changes yet further, CAPs will be able to continue to meet remotely even after the current COVID-19-related temporary legal measures have expired.

These matters are discussed in more detail below.

Current temporary measures

As all council members and staff are no doubt aware, it has been the case since very early in the COVID-19 pandemic that council members have been able to participate in council meetings by electronic means.

The source of the current entitlement is the Electronic Participation in Council Meetings Notice (No 1) 2020 (EPCM Notice) made under section 302B of the Local Government Act 1999 (LG Act). The EPCM Notice permits council meetings to be conducted completely remotely if a council wishes, without any physical meeting location.

CAPs have also been able to meet remotely since early in the COVID-19 pandemic, although the legislative source of this entitlement is different. In particular, it has been section 17 of the COVID-19 Emergency Response Act 2020 (CER Act), which has permitted CAPs to meet remotely.

However, both the EPCM Notice and the CER Act are temporary instruments which will, eventually, expire.

The position after the expiry of the temporary measures

Once the EPCM Notice expires or is revoked, the AI Act cannot be relied upon to allow council meetings to continue to be held remotely or to otherwise permit participation by electronic means by one or more council members.

This is because the AIAM Regulations expressly exclude the following kinds of meetings from the ambit of the relevant provision of the AI Act:

• meetings of councils, council committees, subsidiaries of councils, and regional subsidiaries under the LG Act;
• meetings of electors convened under the LG Act;
• meetings of the Stormwater Management Authority under Schedule 1A of the LG Act;
• meetings held pursuant to section 123(4) of the LG Act for the purposes of public consultation with respect to a draft annual business plan and/or pursuant to sections 151(7) or 156(14d) of the LG Act for the purposes of public consultation with respect to a proposed changes in the basis of rating, valuation, or rating differentiating factor.

Thus, unless some other permanent or temporary change to the law occurs, council meetings will need to be conducted entirely in-person once the EPCM Notice has expired.

Although the AI Act also cannot be relied upon to allow meetings of committees or subsidiaries to be conducted remotely, committees and subsidiaries nevertheless do derive entitlements from other legislative sources to meet electronically.

In particular, committees may rely upon section 90(7a) of the LG Act to meet electronically, provided the council which established the committee has not precluded this and provided there is still a meeting location which is open to the public. Single council subsidiaries and regional subsidiaries may rely upon Schedule 2 clauses 5(5) and 21(5) of the LG Act respectively, though similarly there must still be a meeting location which is open to the public (unless the subsidiary’s charter excludes this requirement).

CAPs, on the other hand, will be able to rely upon the AI Act to conduct meetings remotely after section 17 of the CER Act expires or is repealed. The AIAM Regulations do not exclude the application of the relevant section of the AI Act with respect to CAP meetings, nor is there anything in the PDI Act which would appear to preclude remote meetings of CAPs (so long as those meetings are open to the public). Thus, unless there is some further legislative change (which is certainly possible), CAPs will be able to continue to meet remotely, indefinitely.

The lawfulness of electronic meetings is a matter which is complicated, particularly at the present time when various temporary and permanent legal measures are changing and overlapping. Should further changes occur which are relevant to the local government sector, we will provide appropriate updates.

For more specific advice or information regarding any of the matters discussed in this article please contact Felice D’Agostino on +61 8 8210 1202 or fdagostino@normans.com.au, Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au or Chris Alexandrides on +61 8 8210 1299 or calexandrides@normans.com.au.